Way back when I served as a law clerk to a federal district court judge, I remember watching a trademark infringement bench trial about to begin. The parties had all their exhibits lined up; they had prepared their experts and their surveys; their attorneys announced that they were ready to proceed. Months before, I had worked on the opinion denying one side’s motion for summary judgment, so I knew that the parties had already invested in a lot of pre-trial proceedings. Before hearing opening statements, my judge advised the parties that he had formed no conclusions yet about which side was in the right. He told the parties and their attorneys that he would try to reach the correct result, and that he was ready and willing to give everyone a fair trial, but that he was himself uncertain about the outcome. He also wanted to remind the parties that whatever the result of the trial, the losing party could always appeal, and they could still be looking at a long period of expensive litigation ahead of them. He then asked if they had made all efforts to settle the case. His entire speech took about two minutes. One of the attorneys asked if they might have a few more minutes to confer between themselves, and the judge retreated to chambers. Less than an hour later, the attorneys sent back word that they had settled the case.

Such is the power of the trial judge to settle cases. Sometimes all people have to do is look into the eyes of the person in whom they are about to entrust their fate before they realize that it might make more sense for them to control the result themselves.

Of course judges often have to get a lot more involved in settlement negotiations, employing a variety of mediation techniques to help the parties reach a settlement. Some of them are masters at mediation. But the real power of the judge usually rests in the parties’ perception of the judge as an authority figure. Parties come to court expecting an embodiment of wisdom and power to dispense justice to them. They sometimes carry these same expectations into a mediation. Even if the settlement judge is a different judge from the trial judge, or is a retired judge, parties tend to put some stock in his perception of the case’s likely result, based on their confidence in his experience. Studies support the idea that what judges bring to the table is their moral authority and their ability to provide reliable case evaluations. (also here and here) And as shown by the example I witnessed, sometimes judges don’t even have to intimate the likely outcome to retain their power to induce a settlement. They might just need to look the parties in the eyes and suggest that settlement would be a good idea.

The drawback of using a judge as a mediator comes when the parties aren’t so intimidated by the settlement judge, or when the judge is too opinionated and one or the other party disagrees with the settlement judge’s opinion. Even if that party is being foolish to disagree, the judge can still lose his effectiveness when his assessment of the case is simply rejected. As this article by Jeff Kichaven points out, it is not often that even experienced judges are able to provide a better valuation of the case than the parties’ attorneys, who have lived with the case for months and are intimately familiar with its details. Judges sometimes think that case assessment should be the end-point of a mediation. They may not always have the patience to allow the parties to work their way through their own assessments, or to probe into other factors preventing resolution of the dispute. When considering a judge as a mediator, it may be helpful to ask what else that judge brings to the table aside from his judicial experience and authority, or is that experience sufficient to help settle the case in a satisfactory way. The best judge-mediators retain their aura of authority, while refraining from being too quick to judge the outcome; and they continue working with the parties beyond the case assessment stage of a mediation.

6 Comments

Anonymous
on January 4, 2010 at 7:53 pm

This was just… horrible. You are confusing settlement conference with mediation. There's nothing wrong with this behavior in a settlement conference. It's expected. But as for mediation, in many areas the behavior you are describing would be grounds for a mediator (judge background or not) having their credentials revoked. It's bad enough that this practice goes on, but to argue in favor of it is asinine.

I have to say, Anonymous, that I really don't understand your comment. Where in my post am I arguing in favor of an evaluative approach in mediation? What I was trying to suggest was in fact the opposite: judges who tend to be too ready to "decide" cases that are submitted to them for mediation, are unlikely to be successful at mediation, at least where one of the parties is dissatisfied with the judge's evaluation. On the other hand, sometimes parties go to mediation expecting or wanting someone to decide or evaluate the case for them. And having a judge tell them what they have to do to settle a case often relieves a party of some responsibility and provides a cover for them in justifying a settlement payment to others. If that is what parties expect or need, judges are sometimes in a good position to provide that for them.

I am also curious about your comment that mediators who provide case evaluations can have their credentials revoked. Where does this occur?

This is absurd! Research in Florida, which has had court mandated mediation for over 20 years finds that judges make terrible mediators I have been a certified mediation trainer, both federal and state since 1996 and have found what Anonymous says to be true. There have been more complaints, sanctions and ethical breaches in mediations by judges than any other group.

Where does this happen? Florida for one. I have been a primary trainer for the Florida Supreme Court since 1996. I have conducted over 2000 mediations in that time. We have found that Judges make often make terrible mediators. There have been more sanctions against judge/mediators than any other group.

What you are describing is non-binding arbitration, not mediation. Judges should leave mediation to the pros.

Does a mediator need to have knowledge of the law?

ABSOLUTELY NOT! It is far better to choose a mediator who has a working knowledge of the subject matter. Studies have shown that mediations where the litigants have control result in better outcomes and fewer complaints.

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Joseph C. Markowitz

Joseph C. Markowitz has published this blog, focusing on mediation and other forms of conflict resolution, since 2009. Mr. Markowitz practices law under the name "Law Offices of Joseph C. Markowitz," sharing space with three other attorneys in downtown Los Angeles. He has been in practice since 1980, emphasizing employment law, intellectual property, and general business disputes. Mr. Markowitz was trained as a mediator in 1994, and has served on one state court and two federal court mediation panels, in addition to handling private mediations. He also served as president of the Southern California Mediation Association in 2014.

For more information about Mr. Markowitz’s law and dispute resolution practice, go to jcmarkowitz.com